Advisory Opinions – "Can Marijuana Users Be Barred from Owning Guns?"

Podcast: Advisory Opinions by The Dispatch
Hosts: Sarah Isgur (A), David French (B)
Date: March 5, 2026

Episode Overview

This episode centers on the Supreme Court oral argument in the case concerning 18 U.S.C. § 922(g)(3), which disarms “unlawful users” of controlled substances, focusing on whether marijuana users can be barred from gun ownership under the Second Amendment. The hosts explore the legal doctrines, historical analogues, and policy arguments behind the case (colloquially, "Hamani"), offering a lively discussion on civil liberties, judicial reasoning, and real-world consequences.

They also cover two high-profile rulings from the Supreme Court’s interim docket—one on parental rights and gender transitions in schools (Bonta case), and another on New York’s racial gerrymander/redistricting—and offer a primer on the War Powers Resolution, before teasing future episodes.

Main Segment: Marijuana Use & Gun Rights at SCOTUS

[03:14] – [23:50]

Setting the Stage

• The Case: "Hamani" involves a defendant who regularly uses marijuana but was not accused of being under the influence while possessing a firearm. The legal challenge: Does 18 U.S.C. § 922(g)(3) violate the Second Amendment by disarming “unlawful users” of controlled substances (here, marijuana)?
• Key Fact: The statute distinguishes between use, addiction, and possession under the influence; here, it’s about regular use, not addiction or simultaneous use and possession.

Case Framing

• Sarah describes the fact pattern as “the least helpful for the government,” emphasizing both the commonness and relative social acceptability of marijuana.

  "If you use illegal drugs, you shouldn't have a gun. ... You've already shown that you're breaking the law. So why are we doing this?" [05:01 – 05:20]

• David pushes back, noting his libertarian streak, focusing on the deeper rights implications:

  “I'm a pretty libertarian dude … but when it comes to the Bill of Rights, I'm pretty libertarian… I was very much taken by the Justice Barrett analogy…” [05:37 – 06:05]

The Justices and Key Hypotheticals

• Justice Barrett’s “Spousal Ambien” Hypothetical: Is someone more dangerous if they take their spouse’s Ambien illegally than if they have their own prescription? Does lawbreaking (not the actual effect) justify disarmament?

  "The drug's pharmacological effects are identical. So the disarmament isn't really about the drug making someone dangerous. It's about the lawfulness." [08:13 – 08:26] — Sarah

• Justice Gorsuch’s “Drunkards at the Founding” Analogy:

  “The historical threshold for being a habitual drunkard was astronomically higher than what the government claims qualifies as an unlawful user…” [07:09 – 07:33] — Sarah

  Gorsuch invokes founders like Adams, Madison, and Jefferson’s notable alcohol consumption to question modern parallels:

  “Are they all habitual drunkards who would be properly disarmed for life under your theory?” [07:45]

• Justice Kavanaugh's Mens Rea & Vagueness Concerns:
  How do you define “habitual” use? Could the same logic be used to ban drivers who use illegal drugs?

• Justice Alito’s Cultural Distinction:
  Alcohol is different—it’s always been accepted culturally; drugs haven’t.

• Justice Jackson’s Bruen Critique:
  Points out that under Bruen’s “text, history, and tradition” test, modern dangerousness judgments don’t justify new categorical bans:

  "Conceptually, that is precisely what the Bruen test prohibits..." [12:30 – 14:58]

Philosophical Divergence

• Is Gun Ownership a “Right” or a Privilege?
  David sharply distinguishes between dangerousness and mere illegality:

  “I don't see illegality as a synonym with dangerousness, and only dangerousness should deprive you of this right, if that makes sense.” [16:46 – 17:08]

• Real-World Law and Lines:
  Most states focus laws on addiction or convictions, not just “use.” Sarah tentatively agrees Congress must tailor restrictions but remains less sympathetic to “civil libertarian” objections.

Predictions & Doctrine Arc

• Will the Court Uphold the Ban?
  David leans toward the Court upholding 922(g)(3) due to “line drawing” difficulties—illegality is a clearer bar than trying to distinguish among levels of use or types of drugs.

  “It's just easier to say, okay, illegal drugs. … We're not asking a lot.” [19:18 – 20:37]

• Sarah predicts the Court may strike it down, requiring a tailored showing of dangerousness.

• Memorable Moment: Barrett’s unfamiliarity with "ayahuasca" sparks laughter.

  "I have never heard of the drug that she was… Is that real?" [21:28 – 21:32]

Big Picture

• Ongoing practical confusion over Second Amendment precedent:
  Bruen, Rahimi, and the proper method for determining when and how modern restrictions align (or don’t) with founding-era law and practice.
• Expansion on the challenges of applying “text, history, and tradition” to problems (new drugs, weapons) unknown in 1791.

Interim Docket Deep Dives

[27:36] – [50:07]

Bonta: Parental Rights & Gender Transition Notifications

Background: A California law prevented schools from disclosing students’ gender transitions to parents without the student’s consent.

The Case

• The Facts: Parents sued after learning of their child’s transition only in the wake of a suicide attempt.
• The Ruling: 6-3 decision upholding a district court injunction (overruling the 9th Circuit), preventing enforcement of the law.

Free Exercise and Parental Rights

• Direct citation to precedent (Yoder, Pierce):

  "Parents, not the state, have the primary authority with respect to the upbringing and education of children." [31:18 – 31:37]

• David calls the law:

  "Downtown Bonkerstown, like the heart of it." [31:58 – 32:04]

Substantive Due Process, Revisited

• Barrett’s concurrence: Dobbs ended Roe, not all unenumerated rights. Parental authority is deeply rooted, unlike abortion.

  • Conservatives splinter: Some (Alito, Thomas) don’t join Barrett’s embrace of substantive due process; liberals air skepticism on the interim (“emergency/shadow”) docket’s reach and transparency.

• Notable Exchange:

  “Here is our message. We're your best friend because we are trying to make your boss more powerful every day.” [62:30 – 62:44] — David, referencing Congress’s reclaimed power.

Interim Docket Controversy

• Both hosts agree with the merits but diverge on the propriety of Supreme Court emergency intervention, supporting the dissent’s preference for standard procedural exhaustion.

New York Redistricting: Racial Gerrymander or State Issue?

[50:07] – [56:49]

• New York’s courts ordered a new district map to ensure minority voters can elect a candidate of their choice—explicitly considering race.
• Supreme Court intervenes (again, 6-3), staying the state court order.
• Justice Sotomayor’s dissent:

  “The court thrusts itself into the middle of every election law dispute around the country…” [53:27 – 54:05]

• David and Sarah: Both expected the Court to abstain; the episode highlights uncertainty in the evolving emergency docket jurisprudence.

Quick Hit: The War Powers Resolution

[57:59] – [63:21]

Key Points

• The Law (1973): Requires notification to Congress within 48 hours of military action; combat capped at 60 days without authorization or a declaration of war.
• Reality: Presidents treat the law as “kabuki theater”—formally complying while disputing its constitutionality; the practical result is often “60 days of free war.”
• “Whatever meaning … must be supplied by Congress, through Congress acting on that meaning.”
• The hosts reiterate their support for returning foreign policy power to Congress.

Notable Quotes & Memorable Moments

• David on parental notification ban:

  "Bonkerstown, like the heart of it. Even before Mahmoud. Even before Mahmoud." [31:58 – 32:10]

• David on rights vs. privileges:

  "We really haven't wrapped our minds around whether gun ownership really truly at its core is a right or a privilege... only dangerousness should deprive you of, of this right." [15:01 – 17:10]

• Sarah (on the SCOTUS shadow/emergency docket):

  "I think in the end I agreed with Justice Kagan on the Bonta case that I would have at least let the en banc 9th Circuit decide this case..." [50:20 – 50:50]

• Barrett’s ayahuasca moment:

  "I have never heard of the drug that she was... Is that real?" [21:28 – 21:32]

Timestamps by Topic

• [03:14] Main Case: Marijuana & Gun Ownership / 922(g)(3)
• [07:00] Justice Gorsuch, Originalism, and History of Intoxicants
• [08:48] Justice Barrett's Spousal Ambien Hypothetical
• [11:43] Alito, Kavanaugh, Jackson: Policy vs. History & Bruen Analysis
• [19:23] Predictions and Doctrinal Uncertainty
• [27:45] Parental Rights, Bonta Case
• [37:03] Substantive Due Process, Dobbs, Barrett Concurrence
• [50:07] Interim Docket, Emergency Appellate Practice
• [55:10] New York Racial Gerrymander/Redistricting Stay
• [57:59] Primer: War Powers Resolution

Tone and Takeaways

The episode features rigorous legal analysis, friendly disagreement, and signature Advisory Opinions banter. The hosts clarify complex interplays among law, doctrine, and lived experience, offering a digestible breakdown for both legal insiders and curious lay listeners.

Closing Note

Stay tuned for future podcasts covering sleeper Supreme Court cases, memorable oral argument clashes, and further developments on the emergency docket.